Hubbard v. D'Ilio

United States District Court, D. New Jersey

June 12, 2018

FRANK HUBBARD, Petitioner,v.STEPHEN D'ILIO, et al., Respondents.

Frank
Hubbard, Petitioner pro se

Christopher C. Josephson, Deputy Attorney General Office of
the New Jersey Attorney General R.J. Hughes Justice Complex
Attorney for Respondents Stephen D'llio, Attorney General
of the State of New Jersey, and New Jersey Parole Board

OPINION

ANNE
E. THOMPSON, U.S. DISTRICT JUDGE

I.
INTRODUCTION

Petitioner
Frank Hubbard ("Petitioner") has submitted a
petition, pro se, for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. (See Am. Pet.,
ECF No. 3.) Respondents Stephen D'Ilio, Attorney General
of the State of New Jersey, and New Jersey Parole Board
(collectively "Respondents") oppose the petition.
(Answer, ECF No. 11.) For the reasons stated herein, the
Court concludes that it cannot grant the petition and that no
certificate of appealability is warranted.

II.
BACKGROUND

On July
6, 1982, the New Jersey Superior Court sentenced Petitioner
to a term of life imprisonment.[1] (See July 6, 1982 J. of
Conviction, ECF No. 11-4 at p. 45.) Petitioner has been
incarcerated since that time. Petitioner was denied parole
for the first time in 2006. In 2012, [2] the New Jersey Parole Board
(the “Board") again denied Petitioner parole.

It is
the Board's 2012 parole denial which Petitioner is
challenging in this § 2254 matter. Petitioner
principally argues that the Board impermissibly considered
and emphasized Petitioner's pre-1982 criminal history and
pre-2006 history of institutional infractions when it denied
him parole in 2012.[3]

Initially,
this Court notes that the Board's authority to consider
Petitioner's pre-2006 actions is the result of a 1997
amendment deleting the word "new" from §
30:4-123.56(c) of the New Jersey Parole Act of 1979 (the
"Parole Act"). Hubbard v. New Jersey State
Parole Bd., No. A-0205-12T2, 2014 WL 901933, at *2 (
N.J.Super.Ct.App.Div. Mar. 10, 2014). As explained by the New
Jersey Superior Court, Appellate Division:

An inmate shall be released on parole on the new parole
eligibility date unless new information . . .
indicates by a preponderance of the evidence that there is a
substantial likelihood that the inmate will commit a crime
under the laws of this State if released on parole at such
time.

In 1997, the [New Jersey] Legislature adopted various
amendments to the parole law, including an amendment deleting
the word 'new' from [§ 30:4-123.56(c)],
permitting the Board to consider any information at
the subsequent hearing. That amendment was enacted to allow
the Board to weigh all relevant information in an
inmate's record when considering that inmate's parole
eligibility at second and subsequent hearings.

Another amendment modified the criteria for denial, changing
it from "substantial likelihood that the inmate will
commit a crime ... if released on parole" to "has
failed to cooperate in his or her own rehabilitation or . . .
there is a reasonable expectation that the inmate will
violate conditions of parole[.]"

Id. at *2 (emphasis added) (citations omitted). In
other words, as a result of these amendments, §
30:4-123.56(c) of the Parole Act, now reads, in pertinent
part, as follows:

An inmate shall be released on parole on the new parole
eligibility date unless new information . . . indicates by a
preponderance of the evidence that there-is-a substantial-likelihood-that-the-inmate-will-commit-a crime under the laws of
this State if released on parole at such time the
inmate has failed to cooperate in his or her own
rehabilitation or that there is a reasonable expectation that
the inmate will violate conditions of parole imposed ... if
released on parole at that time.

[Petitioner] was first considered for parole in 2006. Parole
was denied and [Petitioner] received a ninety-six-month
[Future Eligibility Term (“FET")]. The panel
explained, “after twenty-six (26) years of
incarceration, you have not shown the requisite amount of
rehabilitative progress in reducing the likelihood of future
criminal activity."

(Petitioner] was again considered for parole in September
2011. The hearing officer referred the matter to a Board
panel for a hearing. [Petitioner] appeared before a
two-member Board panel in November 2011. The panel denied
parole for the following reasons: [Petitioner's] prior
criminal record; the nature of [Petitioner's] crimes were
increasingly more serious; he was incarcerated for
multi-crime convictions; his parole had been revoked in the
past for commission of a new offense; [Petitioner's]
prior incarceration and a prior opportunity of parole failed
to deter his criminal activity; his institutional infractions
were "numerous[, ] persistent [and] serious in
nature;" and [Petitioner] had displayed
"[insufficient problem resolution." The panel
amplified the final reason as follows:

[Petitioner was] involved in murder while on parole for
murder but he appears to believe that since he didn't
pull the trigger, he was less responsible for his criminal
behavior. He cannot explain why he was participating in a
robbery while on parole.

[Petitioner] was referred to a three-member Board panel for
the establishment of an FET. In his argument for mitigation
before the three-member panel, [Petitioner] again maintained
that he was not the shooter during the robbery of [David]
O'Neil and the prosecutor's claim to the contrary was
not true. On February 1, 2012, the three-member Board panel
established an FET of eighty-four months for [Petitioner].

[Petitioner] appealed to the full Board and on July 25, 2012,
the Board adopted the panel decisions denying parole and
setting ...

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